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National Review published my essay explaining the significance of Judge Hanen’s decision enjoining DAPA. I broke down the opinion in this post, and my NRO essay provides a bigger picture analysis.

First, now that Judge Hanen has issued a serious 123 page decision, supporters of DAPA can no longer scoff and laugh at the arguments.

When Texas filed a constitutional challenge to President Obama’s executive action on immigration, his supporters scoffed and ridiculed the suit as lacking any merit. First, they argued, states are not injured by the federal policy. Second, they contended that Congress had already given the president the discretion to halt the deportation of millions. Finally, they predicted that the courts would stay out of this important policy debate. The Justice Department’s brief rebuked the suit, alleging that the claims “are based on rhetoric, not law.” Judge Andrew S. Hanen in Brownsville, Texas, disagreed. In a massive 123-page opinion issued on Monday, Judge Hanen thoroughly rejected each of these arguments, vindicating Texas — and 25 other states that joined it — in this challenge to the president’s disregard of the law.

Say what you will about Judge Hanen’s previous decisions, but a 100+ page opinion is not a hack job. There is a serious legal issue here that a judge approached in a thoughtful way. I candidly admit that reasonable minds can differ on this difficult topic, but it simply isn’t the case that a partisan judge ruled based on ideology. The depth of the analysis makes this point clear. Compare Hanen’s opinion with Judge Howell’s cursory decision in the Arpaio litigation, where she uncritically accepts all of the government’s arguments in a few meager pages, or the decision from the Western District of Pennsylvania where the court improperly reached the issue. This reminds me of Judge Vinson’s decision in the Obamacare litigation for its depth.

Second, now a federal judge has lent his imprimatur to the challenge. Much like the early days of the Obamacare challenge, a common tact of the left was to delegitimize the arguments of Barnett and others. What made the challenges gain salience, or in the words of Jack Balkin, go from “off the wall to “on the wall” was that it was accepted by a federal court. Namely Judge Vinson’s opinion. Now, Hanen has ruled in a similar fashion.

This case will soon be appealed by the DOJ to the Fifth Circuit Court of Appeals, and ultimately to the United State Supreme Court, but Judge Hanen’s thoughtful opinion has shifted the tenor of the debate. No longer can critics scoff at the argument that DAPA is unlawful. Hanen’s workmanlike decision has moved the arguments from “off the wall” to “on the wall.” The decision from Brownsville, on the literal and figurative border between the federal and state governments, is a first step toward restoring the separation of powers and ensuring that the president faithfully executes the laws.

Third, the court didn’t need to reach the constitutional issue, but as I’ve argued at some length the Heckler v. Cheney analysis closely mirrors a Take Care clause analysis. If a higher court wants to address this issue, Judge Hanen’s decision provides a basis for ruling in this area.

The court did not need to address the constitutional issue, and it did not address whether the president failed to comply with the Constitution’s requirement that he “take care that the laws be faithfully executed.” Judge Hanen, however, showed his hand by explaining that the president had engaged in a “complete abdication” of the law. Rather than enforcing the law, Hanen saw Obama’s actions as making law: The executive is “is not just rewriting the laws; he is creating them from scratch.” This is the role of Congress, not the president.

Fourth, Judge Hanen also gave the Court a narrow way of ruling. By finding that the APA was not complied with, a majority of the Court could simply invalidate the policy and require that it go through the notice-and-comment process. Of course, the Justices know that this will not, and cannot happen in the waning 22 months of the Obama administration. This minimalist approach, allowing the Executive branch to fix a problem, would be keeping with what my friend Richard Re calls the “doctrine of one last chance.” For example, in Shelby County the Court allowed Congress to fix the Voting Rights Act, even though everyone knows that won’t happen.

Even if the administration complies with the notice-and-comment process of the APA — unlikely with only 20 months until the next election — such a broad policy of non-enforcement would still run afoul of the Take Care clause.

If the Court takes this approach, they can run the clock out on the Obama administration.

This case will be appealed quickly, but we should not lose sight of the importance of this decision.

On Wednesday at noon, I will be speaking at Loyola Law School in Chicago on the constitutionality of the President’s executive actions. On Thursday at noon I will be speaking at the University of Illinois in Urbana-Champaign on Data and the First Amendment.Professor Jason Mazzonne will kindly comment on my talk.  On Thursday at 5:00 I will be speaking at John Marshall Law School on executive power and immigration. Professor Steven Schwinn will provide comments. All events are at Federalist Society chapters, and are open to the public. I will also be at the Federalist Society Student Symposium on Friday and Saturday. See you in the Windy City.

 

I will be on “Inside Story with Ray Suarez” at 11:30 ET on Al Jazeera America to discuss the ruling from Brownsville. I will be joined by Marielena Hincapie of the National Immigration Law Center.

The lecture notes are here. The live chat is here.

Scope of Federal Powers II

• Wickard v. Filburn (607-612).
• The modern debate (612).
• Hearts of Atlanta Motel (612-617).
• United States v. Lopez(617-637).’

Wickard v. Filburn

This is farmer Roscoe Filburn.

This is Secretary of the Agriculture Claude Wickard.

This is Wickard, flanked by New Dealers, in front of various charts and projections about the price of agriculture.

Hearts of Atlanta Motel v. United States

The Hearts of Atlanta Motel, located at 255 Courtland Street NE in Atlanta, was owned by Atlanta lawyer Moreton Rolleston Jr. This was a segregate hotel. Rolleston represented himself all the way to the Supreme Court. The location is currently a Hilton.

 

 

During the Jim Crow era, “The Negro Motorist Green-Book” provided African Americans with a listing of hotels they could stay while traveling.

These cabins in South Carolina were advertised “For Colored.”

Katzenbach v. McClung

This is Ollie’s Bar-B-Q, the site of Katzenbach v. McClung in Birmingham, Alabama.

 

 

Many restaurants only served only white patrons, such as this restaurant in Lancaster, Ohio.

And because I am insane, I purchased an entire case of Ollie’s Bar-B-Q sauce.

 

And who says trolling eBay for worthless mementos from Supreme Court cases is useless. Recently, for the princely sum of $3.99 plus shipping, I purchased a matchbook from Ollie’s Barbecue–the Birmingham, Alabama establishment of Katzenbach v. McClung fame that refused to serve black customers, insisting that it did not engage in interstate commerce. Though, as the Court found, it purchase most of its meat from a butcher who had procured it from out of state.

In the 12 months preceding the passage of the Act, the restaurant purchased locally approximately $150,000 worth of food, $69,683 or 46% of which was meat that it bought from a local supplier who had procured it from outside the State. The District Court expressly found that a substantial portion of the food served in the restaurant297*297 had moved in interstate commerce.

Now, thanks to the magic of eBay, I submit to the world additional proof that Ollie’s engaged in interstate commerce! Their matchbooks were manufactured by the Universal Match Corporation in Atlanta–across state lines! Read it and weep.

It is impossible to tell exactly when the matchbook was manufactured, but based on the zip code it would have been at least 1963, as that is when zip codes were introduced. The seller on ebay–an expert in matchbooks–told me “I’m guessing late 50’s to early 60’s. The paper from that time was a bit lighter on the back, but not bright white or smooth like later on.” So this is squarely in the time period in which Ollie’s would have run right into Title II of the Civil Rights Act of 1964.

The Address for “Ollie’s World’s Best Barbecue” was 515 8th Ave., So. Birmingham, Alabama 35205. Nothing is there now. They were in that location until 1999.

So here we have it. Further proof that Ollie’s did engage in interstate commerce!

The McClung’s were apparently quite religious, as their matchbook struck a Christian spark. (Oh that pun was awesome).

On the front, the Matchbook says:

“If you never know me, you’ll miss nothing, If you never know Jesus Christ, you’ll miss everything.”

The back of the matchbook quotes from 2 Chronicles 7:14 (King James Version):

 If my people, which are called by my name, shall humble themselves, and pray, and seek my face, and turn from their wicked ways; then will I hear from heaven, and will forgive their sin, and will heal their land.

 

The Universal Match Corporation, as evidenced by this 1950-era promotional matchbook was located at 317 Buckhead Ave, N.E., Atlanta, Georgia.

United States v. Lopez

This is Thomas Edison High School in San Antonio, Texas, the site where Alfonso Lopez, Jr., brought a gun to school in violation of the Gun-Free School Zones Act of 1990.

 

I obtained these (blurry) photographs from Lopez’s high school yearbook.

 

The caption reads “Rushing down the field, Alfonzo Lopez warms up before the game.”

United States v. Morrison

This is Christy Brzonkala, the plaintiff in what would become United States v. Morrison. I could not find a photograph of Antonio J. Morrison and James Crawford.

 

Gonzales v. Raich

This is Angel Raich, the lead plaintiff in Gonzales v. Raich.

Here is a photograph of Raich using a marijuana vaporizer.

Right to Left: Robert Raich, Angel McClary Raich, (a younger) Randy Barnett, Diane Monson, and David Michael at the Ninth Circuit Court of Appeals in San Francisco, California.

Here is Raich finding out that the Supreme Court ruled against her cause.

Since discussions of the authority of district courts are all the rage, I post again what I wrote in December about whether Judge Hanen could issue a nationwide injunction (he did so).

In a previous post, I noted that Texas sought a “nationwide” injunction against the enforcement of DAPA. Joshua Block of the ACLU kindly noted that the government often argues that “comity between circuits prevents nationwide injunctions.” Joshua pointed me to the 2010 government’s emergency motion for stay pending appeal to the 9th Circuit in the Don’t Ask, Don’t tell case (If you can remember that far, that was back when the Obama administration was defending the law). In this case, the district court issued a nationwide injunction, and the government objected. So could the district court in Texas issue a nationwide injunction? This history of the DADT litigation is very instructive to understand what may come next.

The District Court’s found that DADT was unconstitutional, and issued a nationwide injunction against all DOD officials:

(2) PERMANENTLY ENJOINS Defendants United States of America and the Secretary of Defense, their agents, servants, officers, employees, and attorneys, and all persons acting in participation or concert with them or under their direction or command, from enforcing or applying the “Don’t Ask, Don’t Tell” Act and implementing regulations, against any person under their jurisdiction or command;

In its orders (p. 121 of PDF) the district court acknowledged that its order prevents the government from defending the constitutionality of DADT in other district courts.

To the extent that Defendants’ reference to “other courts” is intended to refer to other district courts, Defendants are correct that this injunction will prevent them from defending the constitutionality of the Don’t Ask, Don’t Tell Act. As discussed above, the proper remedy for the relief sought here is complete invalidation of the Don’t Ask, Don’t Tell Act. As such, Defendants are bound by this Court’s ruling. Further, if Defendants’ objection is that they will be unable to defend current or future as- applied challenges, Defendants once again fail to recognize the nature of Plaintiff’s challenge. Plaintiff did not prevail on an as-applied challenge, which would have rendered the Act unconstitutional as applied to it but not affected the constitutionality of the Act overall. Rather, Plaintiff challenged the constitutionality of the Act on its face and requested an order permanently enjoining the Act’s enforcement. As the Court deems this remedy proper, Defendants are unable to defend the Act in as- applied challenges. Likewise, if Defendants’ objection is that they will be unable to defend current or future facial challenges to the Act, the same reasoning applies. To the extent that Defendants’ reference to “other courts” indicates higher courts, Defendants’ recourse, if they wish to defend the Act further, is to appeal this Court’s ruling.

Second, the district court observed that there was no precedent justifying the government’s arguments that a single district court cannot issue a nationwide injunction:

Defendants next argue that the Court should not issue a nationwide injunction because other circuit courts have found the Act constitutional. Defendants cite no case in which a court finding a federal statute unconstitutional on its face has limited its ruling to a particular judicial district.

Third, the district court turns to the government’s interest in preserving “comity” among the courts of appeals:

The Court next turns to Defendants’ argument that comity prevents the Court from issuing a nationwide injunction. As noted above, of the four circuit cases holding the Don’t Ask, Don’t Tell Act constitutional, Cook is the only case decided after Lawrence and accordingly the only one relevant here. … The doctrine of comity is not a rule of law, but rather is grounded in equitable considerations of respect, goodwill,  cooperation, and harmony among courts ….

In AMC Entertainment, the United States brought suit against a national movie theater owner alleging that some of its theaters violated Americans with Disabilities Act (“ADA”) regulations. 232 F. Supp. 2d 1092 (C.D. Cal. 2002) (hereinafter “AMC Entm’t (C.D. Cal.)”). The district court granted the government’s motion for summary judgment and issued a nationwide injunction requiring the defendants to comply with the ADA regulations, and the defendants appealed. Id.

The Ninth Circuit began its analysis by recognizing that district courts have the power to issue nationwide injunctions. AMC Entm’t (9th Cir.), 549 F.3d at 770-71 (“Once a court has obtained personal jurisdiction over a defendant, the court has the power to enforce the terms of the injunction outside the territorial jurisdiction of the court, including issuing a nationwide injunction.” (citing Steele v. Bulova Watch Co., 344 U.S. 280, 289 (1952) (“the District Court in exercising its equity powers may command persons properly before it to cease or perform acts outside its territorial jurisdiction“); United States v. Oregon, 657 F.2d 1009, 1016 n.17 (9th Cir. 1981) (“When a district court has jurisdiction over all parties involved, it may enjoin the commission of acts outside of its district.”))).

Nevertheless, the divided Ninth Circuit panel went on to hold that the district court abused its discretion by issuing a nationwide injunction because “the principles of comity” should have constrained the court from enjoining defendants’ theaters in the Fifth Circuit, which previously had held defendants’ theaters did not violate the ADA. AMC Entm’t (9th Cir.), 549 F.3d at 772-73 (observing that the Fifth Circuit “judicially repudiated” the reasoning adopted by the district court “when considering the same arguments” enforced in the district court’s injunction). The panel held:

Principles of comity require that, once a sister circuit has spoken to an issue, that pronouncement is the law of that geographical area. Courts in the Ninth Circuit should not grant relief that would cause substantial interference with the established judicial pronouncements of such sister circuits. To hold otherwise would create tension between circuits and would encourage forum shopping.

Id. at 773.

AMC Entertainment is distinguishable from the present case because the former turns on statutory construction, not on fundamental constitutional rights. As Plaintiff argues, “Whatever may be the merits [of comity] in the context of statutory construction — where, for example, our legal system tolerates differing rules in different circuits for issues of the law of bankruptcy, securities, antitrust, tax, and the like — it can hold no sway on issues of constitutional rights.” (Resp. at 7.) The Court agrees that the fundamental constitutional rights at issue here must trump considerations of comity. To hold otherwise would create an untenable result in which Defendants could, pursuant to the Act, discharge servicemembers in Maine, Massachusetts, and New Hampshire, but not elsewhere. The doctrine of comity is rooted in equity; here, the balance of equities decisively tips in favor of upholding the fundamental constitutional rights protected by the First and Fifth Amendments to the United States Constitution.

The government filed an emergency motion for a stay to the 9th Circuit, arguing that it would be disruptive to stay the policy, and opposed the nationwide nature of the injunction (and really worldwide, as DOD personnel are stationed around the globe):

Finally, even though this case is not a class action, the district court erred in awarding what is in essence classwide relief – enjoining application of the statute to any member of the military anywhere in the world – in this case brought by a single organizational plaintiff purporting to advance the interests of two individuals. Injunctive relief is an extraordinary remedy and “should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.” Califano v. Yamasaki, 442 U.S. 682, 702 (1979); see also Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743, 2760 (2010) (narrowing injunction in part because the plaintiffs “do not represent a class, so they could not seek to enjoin such an order on the ground that it might cause harm to other parties”); Doran v. Salem Inn, Inc., 422 U.S. 922, 931 (1975) (noting that “neither declaratory nor injunctive relief can directly interfere with enforcement of contested statutes or ordinances except with respect to the particular federal plaintiffs”); Zepeda v. INS, 753 F.2d 719, 727 (9th Cir. 1983) (“A federal court . . . may not attempt to determine the rights of parties not before the court.”); Nat’l Ctr. for Immigration Rights v. INS, 743 F.2d 1365, 1371-72 (9th Cir. 1984). The Supreme Court acted in accordance with this principle by staying an indistinguishable militarywide injunction entered by a district court in a facial constitutional challenge to the prior, more restrictive military regulations regarding gays and lesbians. See Dep’t of Defense v. Meinhold, 510 U.S. 939 (1993) (issuing a stay pending appeal of the portion of an injunction that “grant[ed] relief to persons other than [the named plaintiff]”). This Court subsequently reversed the district court’s decision to enter a militarywide injunction because the plaintiff was challenging his own specific discharge, see Meinhold v. Dep’t of Defense, 34 F.3d 1469, 1480 (9th Cir. 1994), and there is no reason for a different result here.

The DADT precedent does not seem directly on point in the immigration context. The district court in Texas would not be “awarding what is in essence class-wide relief” in a “case brought by a single organizational plaintiff purporting to advance the interests of two individuals.” Rather, it would be stopping the implementation of a policy that violates the separation of powers, and will impact the 17 states in the suit, and like all 50.

The brief also addresses the comity issue:

The district court’s worldwide injunction also inappropriately interferes with the development of the law in other circuits. The Supreme Court has made clear that “the Government is not in a position identical to that of a private litigant, both because of the geographical breadth of government litigation and also, most importantly, the nature of the issues the Government litigates.” United States v. Mendoza, 464 U.S. 154, 159 (1984). This Court has held, moreover, that “[p]rinciples of comity” prevent a district court from issuing an injunction that “would cause substantial conflict with the established judicial pronouncements” of a sister circuit. United States v. AMC Entm’t, Inc., 549 F.3d 760, 773 (9th Cir. 2008).3 If the district court’s injunction is not stayed, it effectively would overrule the decisions of other circuits that have upheld § 654, and preclude consideration of similar issues by other courts. See Va. Society for Human Life, Inc. v. Fed. Election Comm’n, 263 F.3d 379, 394 (4th Cir. 2001) (relying on Mendoza to limit an injunction in a facial constitutional challenge to a Federal Election Commission regulation).

As a counter to this argument, 17 states united in one single suit. To my knowledge, there are no plans for any other states to bring this type of suit. There will not be any other circuit cases on this. Comity seems like a nonstarter. (Sherriff Joe Arpaio brought a suit in D.D.C. against DAPA, but he does not possess the “special solicitude” of the states). In fact, all of the states bringing a suit in a single district creates the best-case scenario for promoting comity. There will be no circuit splits.

Further one obvious difference–in DADT the ex ante status quo is being disrupted by an injunction; with immigration the ex ante status quo is being maintained with an injunction. Once the policy goes into effect, it will be impossible to roll it back (as the President helpfully reminded us). There can be no claim of disruption–short of messing up planning of DAPA–if it is enjoined before anyone signs up. Now, to the extent that people are approved for it, and receive working papers, the equities shift.

Finally, the government argued that the relief would only be limited to the plaintiffs in this case.

The district court recognized that its injunction would prevent the government “from defending the constitutionality of the” statute, Inj. Order 9 (Attachment D), but contended that these principles were inapplicable because Log Cabin challenged the statute on its face rather than as applied, id. at 4, 9. The district court cited no authority for the proposition that the plaintiff’s legal theory changes the permissible scope of the relief and that proposition is not correct. See, e.g., Va. Society, 263 F.3d at 394 (narrowing nationwide injunction to the plaintiff in facial constitutional challenge); Zepeda, 753 F.2d at 727 (same); Nat’l Ctr. for Immigration Rights, 743 F.2d at 1371-72 (same). A criminal defendant, for example, who successfully claims that the statute he is being prosecuted under is facially unconstitutional gets his conviction reversed – not an order preventing the government from prosecuting anyone under the statute. Contrary to the district court’s apparent view, Inj. Order at 4-5, this is not a case in which granting relief to nonparties is necessary to afford the plaintiff complete relief. See Bresgal v. Brock, 843 F.2d 1163, 1171 (9th Cir. 1987) (upholding an injunction extending relief to nonparties because the injunction could not be tailored to apply only to the parties). Here – assuming (contrary to our submission) that some form of injunction was permissible – the injunction should have been limited to any individuals that Log Cabin properly represented.

The 9th Circuit granted a stay (O’Scannlain, Trott, W. Fletcher). Here is a summary of the government’s argument:

On October 12, 2010, the district court entered a permanent injunction enjoining the enforcement or application of an Act of Congress known as the “Don’t Ask, Don’t Tell Act,” codified at 10 U.S.C. § 654. Although the government, including the President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff, tells us that “[t]he Administration does not support § 654 as a matter of policy and strongly believes Congress should repeal it,” the government nevertheless asks us to “stay enforcement of the district court’s order pending resolution on the merits by our Court of the constitutional issues involved.” The government argues that the district court’s plenary order–mandating that its injunction be given immediate worldwide effect–will seriously disrupt ongoing and determined efforts by the Administration to devise an orderly change of policy. The government asserts that successfully achieving this goal will require as a preliminary matter the preparation of orderly policies and regulations to make the transition. We are advised by the government that, in legal terms, a precipitous implementation of the district court’s ruling will result in “immediate harm” and “irreparable injury” to the military. To make this point, the government avers that a successful and orderly change in policy of this sort will not only require new policies, but proper training and the guidance of those affected by the change. The government persuasively adds that “[t]he district court’s injunction does not permit sufficient time for such appropriate training to occur, especially for commanders and servicemen serving in active combat.” We also note that the government takes issue with the district court’s constitutional conclusions.

The court stressed that granting a stay is warranted because “Acts of Congress are presumptively constitutional, creating an equity in favor of the government when balancing the hardships in a request for a stay pending appeal.” That presumption is inapplicable here as there was no act of Congress. What is being challenged is an executive policy.

Further, the 9th Circuit stressed that there was a Circuit Split with the 1st, 2nd, 4th, and 8th Circuits, which had upheld DADT. This counseled in favor of granting a stay.

As we said in United States v. AMC Entertainment, Inc., 549 F.3d 760 (9th Cir. 2008),

Principles of comity require that, once a sister circuit has spoken to an issue, that pronouncement is the law of that geographical area. Courts in the Ninth Circuit should not grant relief that would cause substantial interference with the established judicial pronouncements of such sister circuits. To hold otherwise would create tension between circuits and would encourage forum shopping.

Id. at 773. The Appellees’ answer to our sister circuits’ decisions is that they are now “irrelevant,” but only a final merits decision by an appellate court can render this judgment.

Again, this argument is inapplicable, as there is, and will be no circuit split on the issue of DAPA.

Finally, the fact that the disruption will cause “immediate harm and precipitous injury” is convincing.

Accordingly, we conclude that the government’s colorable allegations that the lack of an orderly transition in policy will produce immediate harm and precipitous injury are convincing. We also conclude that the public interest in ensuring orderly change of this magnitude in the military–if that is what is to happen–strongly militates in favor of a stay. Golden Gate Restaurant Ass’n, 512 F.3d 1115. Furthermore, if the administration is successful in persuading Congress to eliminate § 654, this case and controversy will become moot.

For immigration, the equities cut the exact opposite direction. Implementing this policy will cause the “immediate harm and precipitous injury” to the states. Maintaining the ex ante status quo will not.

So in conclusion, this argument does not work to oppose a nationwide stay in the immigration context.

The government made at a similar argument in Halbig, arguing that the relief would only apply to the named plaintiffs, if the rule is invalidated.

We respectfully submit a supplemental authority that bears on plaintiffs’ assertion, made for the first time in reply, that “[i]t does not matter that this ‘is not a class action’” and that the Court could extinguish the tax-credit claims of individuals who live in “states like Texas.” Pl. Reply 26. In Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999), and prior decisions, the Supreme Court held that the protections for non-parties are grounded in Due Process. Even when (unlike here) a suit is a class action, “before an absent class member’s right of action [is] extinguishable due process require[s] that the member ‘receive notice plus an opportunity to be heard and participate in the litigation’” and “‘an opportunity to remove himself from the class.’” Id. at 848 (quoting Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 812 (1985)). Moreover, there is a “constitutional requirement” that a “‘named plaintiff at all times adequately represent the interests of the absent class members.’” Id. at 848 n.24 (quoting Shutts, 472 U.S. at 812). Plaintiffs did not seek to represent a class, and their suit could not satisfy these constitutional requirements. For millions of people across the country, premium tax credits are not burdens to be avoided but federal benefits that they need to afford health insurance.

Counsel for Halbig shot back with a motion to strike, rejecting this surreal approach to standing, raised only for the first one weeks before oral arguments! A ruling that a regulation is invalid must apply “nationwide” for “plaintiffs and non-parties alike.”

This Court plainly can and should invalidate regulations that affect non- parties, without implicating Due Process concerns. The APA directs this Court to “set aside” unlawful agency action. 5 U.S.C. § 706(2)(A). See also Comcast Corp. v. FCC, 579 F.3d 1, 10 (D.C. Cir. 2009) (Randolph, J., concurring). And this Court has made clear that when it invalidates a regulation under the APA, such a ruling has “nationwide” effect, for “plaintiffs and non-parties alike.” Nat’l Mining Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1408-10 (D.C. Cir. 1998); see also Harmon v. Thornburgh, 878 F.2d 484, 495 n.21 (D.C. Cir. 1989) (“When a reviewing court determines that agency regulations are unlawful, the ordinary result is that the rules are vacated—not that their application to the individual petitioners is proscribed.”).

Further, Halbig was very, very skeptical that the government only just now discovered this “stale” precedent from 1999. They argue, outright, that the government is prepared to ignore the ruling, if the court were to find that the IRS rule is invalid.

Since it is inconceivable that the Government submitted this stale, irrelevant “supplemental” authority to shore up its argument about the justiciability of the employer plaintiffs’ claims (particularly given plaintiff Klemencic’s clear standing), the Government appears to be laying the groundwork to openly flout any decision by this Court invalidating the IRS Rule. Its view, apparently, is that even if this Court vacates the IRS Rule as contrary to the ACA, the Government may nonetheless freely continue to subsidize coverage for the “millions of people across the country” not parties to this litigation. (Notice at 1.) Indeed, because the Government contends that the Due Process Clause would be violated if non-parties were deprived of subsidies, it may believe that it is constitutionally required to continue to offer subsidies in the face of this Court’s invalidation of the IRS Rule.

Consequently, it is incumbent on the Government to now inform the Court and Appellants whether it will abide by this Court’s decision or, for the first time in history, continue to pursue an agency policy after this Court has ruled that the policy is unlawful and set it aside as ultra vires. Indeed, unless the Government affirmatively disavows its apparent intention to lawlessly flout this Court’s binding order invalidating the IRS Rule, the ordinary remedy of vacatur will not suffice, and injunctive relief will be required to enjoin the IRS from making available the subsidies ruled unlawful.

You get it? Even if the court finds that the government acted illegally, they will continue to act illegally.  And the government seems to imply (but doesn’t say outright) that it would violate due process (!?) to suspend the subsidies to those receiving it!

Contrary to the Government’s last-minute contention, this standard APA practice obviously does not violate the Due Process Clause. If this Court vacates the IRS Rule as contrary to the ACA’s text, that eliminates the only legal basis for the IRS to distribute U.S. Treasury funds to subsidize those who purchase coverage on federally established Exchanges. Thus, vacating the IRS Rule precludes the Government from committing the ultra vires act of distributing Treasury funds that have not been authorized by Congress. So precluding lawless subsidies to those purchasing coverage on federal Exchanges obviously means those people cannot receive those subsidies, but it does not in any way bind them or deny them Due Process rights. Were it otherwise, the APA’s requirement to set aside regulations would be unconstitutional every time the rule affects non-parties (which is almost always true).

…

First, if the Government inexplicably believes that it has the authority (or, more absurdly, a constitutional duty) to continue to disburse subsidies for federal Exchanges in the face of this Court’s order vacating the IRS Rule, this means that invalidating the IRS Rule will not disable the Government from making subsidies available to anybody, including even Klemencic. Thus, mere vacatur of the IRS Rule would not remedy Klemencic’s injury, because so long as a subsidy is “allowable” to Klemencic, he is not exempt from the individual mandate penalty. 26 U.S.C. § 5000A(e)(1)(B)(ii). (See App. Br. 9-11.) An injunction clearly forbidding the Government from subsidizing coverage on HHS-established Exchanges would therefore be necessary to remedy Klemencic’s injury.

The due process clause immunizes the government acting illegally? I don’t understand. I see this as a basis that there is a constitutional right to Obamacare, and any ruling that would wtihdraw benefits would violate Due Process. Is this some sort of Golderg v. Kelley-esque argument? They may want to check Matthews v. Edridge.

This vaguely reminds me of the episode where Judge Vinson in Florida found that the individual mandate was unconstitutional, and could not be severed from the rest of the Affordable Care Act. The opinion was clear as day. Yet, the government filed this bizarre motion for clarification, asking if he “really” meant it. When I spoke to government lawyers while researching the book, they told me that the government actually could not stop the implementation of the ACA. They couldn’t stop it! (They must have been working on the web site or something). Judge Vinson was convinced the government was prepared to ignore the order–and he was right. They asked for an extension because it wasn’t practical to stop it. The bureaucratic Leviathan of giving away unconstitutional benefits trumps the separation of powers.

Here is the section from Unprecedented for your reading pleasure:

Two weeks after Judge Vinson’s opinion striking down the entire ACA, the United States remained confused.

On February 17, 2011, the government filed what is known as a “motion for clarification,” asking the court to explain whether the United States could continue to take steps to implement Obamacare while the case was appealed, even though Vinson had struck down the entire law.

Some in the Florida Attorney General’s office speculated that this may have been a strategic tactic to delay the litigation. One attorney in that office said that the government’s motion to clarify could be interpreted as “stalling, and dragging their feet.” Another involved in the case concurred, describing the motion as an “exercise in futility” and insisting that the government was trying to “delay things.”

The government wasn’t stalling. A former DOJ attorney explained that Vinson’s order “was framed with such breadth that it would be incredibly disruptive with regard to the portions of the Act that were already in force.” The government would not even have been able to comply with the order. The lawyer speculated that Vinson “did not appreciate the full consequences of his order,” and the motion to clar- ify “was able to call the disruption to the court’s attention.” In any event, Judge Vinson was none too pleased with this request and saw it as a pointless delay.

Vinson ruled that, since his opinion, the government has “contin- ued to move forward and implement the Act.” Somewhat skeptically, Vinson mused, “While I believe that my order was as clear and un- ambiguous as it could be, it is possible that the defendants may have perhaps been confused or misunderstood its import.”

Seemingly insulted, Vinson had not expected that the government “would effectively ignore the order.” He implied that the motion for clarification was a stalling method. “The sooner this issue is finally decided by the Supreme Court, the better off the entire nation will be. And yet, it has been more than one month from the entry of my order and judgment and still the defendants have not filed their no- tice of appeal [to the Court of Appeals].”